The lessons of two world wars which informed the creation of the United Nations in 1945, and the maintenance of international peace and security for over 60 years, can be forgotten.

It is entirely conceivable that without decisive leadership from either Europe or the United States, the international order that has existed for many decades could start to wobble and even collapse.

And it is nearly impossible to conceive of such leadership emerging any time soon.

The rubble in Syria resembles the rubble in Berlin and the destruction in Germany in 1945, which occurred the last time the international order collapsed.

How bad could it get?

You could have wars like the one in Syria devastating countries in Africa, a nuclear attack on Los Angeles from North Korea, Iran with nuclear weapons and delivery systems within 5-10 years, and Israel surrounded by hostile Islamist states.

Things could fall apart.

Imagine a world without law, without international law governing the use of force which is generally observed and which states seek to uphold when it is violated.

Imagine true anarchy unleashed upon the world.

Imagine a world in which states use force without acknowledging they have acted, and without any obligation to publicly justify the legitimacy of their actions by reference to international law.

At 12:39 a.m. EST, Senator Rand Paul concluded a filibuster on the floor of the U.S. Senate that lasted more than 12 hours, conducting a rare “speaking” filibuster of the confirmation vote for John Brennan to be CIA Director. Brennan was approved by the Senate Select Committee on Intelligence earlier by a vote of 12-3.

But historians will look back at this dark period in which America abandoned the rule of law, and ask, “Who Spoke Up? Who opposed such actions?” Rand Paul will have a privileged place in the history they write. At least one Senator took this set of issues beyond the comfort zone. Others will stand up in voting against the Brennan nomination, some for the reasons set forth by Paul and in the article reproduced below.

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REPRISE: Secret Laws, the John Brennan vote, and the rule of law

We must bear witness to the truth and fight to uphold the rule of law.

Originally published February 24, 2013

Let us step back for a moment from the details of what John Brennan is saying now in order to get confirmed by the Senate as CIA Director.

The Senate Select Intelligence Committee vote on his confirmation, like the full Senate vote that may follow, poses fundamental moral and political questions for the Senators who will be voting. Because the Brennan confirmation itself raises key questions regarding the struggle against terrorism and the rule of law, they will in effect be voting for a definition of American democracy as it exists today, in 2013.

Moreover, because the U.S. has been been viewed over the centuries as a beacon of liberty, their votes will have far-reaching impacts throughout the world, where the nature of democracy is also at issue.

Most importantly, perhaps, their votes will engage their own individual moral responsibilty for government actions which they, whether by acquiescence or affirmation, in effect approve of by their votes on the Brennan nomination.

These questions go to the heart of what it means to say America is a democratic nation governed by the rule of law.

In a democracy, can the government rule by secret laws?

In a democracy, can secret decrees or interpretations of legal authority be used to authorize or condone acts of torture, extraordinary renditions, or targeted killings?

What is the difference between secret star chamber proceedings in a dictatorship and secret proceedings in the U.S. Executive Branch by which it is decided that the right to life of a U.S. citizen, or a foreign citizen for that matter, is to be extinguished and that individual is then killed?

What does it say about American democracy today, in 2013, if Executive branch claims of legal authority to act extra-judicially to kill citizens of the U.S. or other countries are tacitly accepted, when the legal justifications for such actions are held in secret from the public and the Congress as a whole?

What does it say about American democracy when the constitutionality and legality of such actions, purportedly authorized by secret legal memoranda, are not subject to judicial review as a result of the Executive’s’ invocation of the “state secrets privilege”, whose broad interpretation by the Bush and Obama administrations the courts have not yet had the courage to strike down?

Can the American Democracy be said to be based on the rule of law, in 2013, under these circumstances?

Mr. Brennan is by all accounts the chief architect under Mr. Obama of the targeted killings programs of the Obama administration. In all likelihood, he is the single person who has done the most to persuade Mr. Obama, a former President of the Harvard Law Reviw and a former adjunct professor of Constitutional Law at the University of Chicago Law School, to go over to “the dark side”.

He did so in part by offering Obama moral justifications based on so-called “just war theory” going back to St. Thomas Aquinas, while ignoring the last century of developments in international law and the historical lessons they embodied.

In addition, Mr. Brennan has a deep association with the torture and extraordinary renditions programs of the Bush administration. He was unable, at his February 7, 2013 confirmation hearing before the Senate Select Intelligence Committee, to state clearly that “waterboarding” constitutes torture. Throughout his testimony he referred to acts of torture as “enhanced interrogation technicques” or, in even more Orwellian shorthand, as “EITs”.

Further, if one examines carefully the transcript of the Frebruary 7 confirmation hearing, one finds that he is a master of circumlocution and verbal legerdemain, and of telling political superiors what they want to hear.

Will he be able to enforce U.S. and international legal obligations prohibiting torture within the Central Intelligence Agency? This appears hardly likely in view of his past, and his unwillingness to admit that even waterboarding is torture.

He has also said that the Bush torture program of enhanced interrogation techniques “saved lives”. If he believes that to be the case, and the efficacy of torture is the standard to be applied, it is hard to see how he might avoid giving others in the CIA the impression he would give a wink and a nod to any aberrant behavior they felt they had to do.

Nor is Brennan likely to reestablish the human intelligence capabilities of the CIA, with his history of being the chief architect of the “killing lists” and the Obama policy of “targeted killings”–which is merely a euphemism for the words “extrajudicial executions” or “targeted assassinations” whenever they are conducted in violation of international law (which may be much more often than Obama claims.)

The fact that he is extraordinarily skilled at telling political authorities exactly what they want to hear, and has other Obama officials willing to assert (on background, to be sure) that he is a voice of moral restraint within the White House, or is determined to improve the Agency’s human intelligence capabilities, should not be taken at face value. He is, after all, a spook, a trained expert in deception. We should look at his history, his actions, and not just what he says today, in reaching any judgment about whether he should be confirmed.

Do we know yet today, for example, what role if any he played in the strange evolution of the Benghazi talking points? His colleague, acting CIA Director Michael Morrell, could not even get his version of testimony to Congress on the talking points straight in a single day.

Can a democracy kill people on the basis of secret legal memoranda purporting to find legal authority for the Executive for such actions?

Can a democracy conduct extrajudicial killings in other countires without publishing its interpretation of international law that would authorize such killings, without subjecting its legal arguments to evaluation and responses by impartial experts from other countries, other states, and eventually the judges of international tribunals?

Can the Executive in a democracy kill individuals on the basis of secret legal justifications which are are shielded from judicial review and from the public?

That is the question. It is time that Senators take a stand on these issues, and there is no better opportunity or place to take such a stand than on the vote to confirm John Brennan.

By their votes, each Senator will incur individual moral responsibility for the actions he or she condones or rejects, and responsibility before history for the answers each gives regarding the nature of democracy in America, in 2013.

In comments on July 29 following meetings with President Yayi of Benin; President Conde of Guinea; President Issoufou of Niger; and President Ouattara of Ivory Coast, President Barack Obama stated the following:

“Despite the impressive work of all these gentlemen, I’ve said before and I think they all agree, Africa does not need strong men; Africa needs strong institutions. So we are working with them as partners to build effective judiciaries, strong civil societies, legislatures that are effective and inclusive, making sure that human rights are protected.”
–President Barack Obama, West Africa: Remarks By Obama After Meeting With Four African Presidents”, July 29, 2011, reprinted in TheNigerianDaily.com, July 30, 2011.

As we have learned in other contexts, it is important to examine carefully not just what President Obama says but also, and most importantly, what he does. When he speaks of working with these and presumably other African leaders “to build effective judiciaries, strong civil societies, legislatures that are effective and inclusive, making sure that human rights are protected,” one must ask, “What are the specific programs, in which countries, and at what level of funding is he referring to?”

Again, how does this level of funding, per country, compare to the cost of deploying one American soldier to Afghanistan for one year?

Africans struggling to establish or strengthen democracy in their countries need not just words, but deeds. They need specific and meaningful programs that provide financial assistance for the strengthening of civil society organizations, including NGO’s working to ensure observance of fundamental human rights, and judicial reforms that not only improve the functioning of the courts but also expand access to justice among broader sections of the population.

See The Trenchant Observer, “Obama and Democracy in Africa, 2011,” July 16, 2011

Also worth noting in passing is the level of sophistication regarding Africa revealed at the White House, when the President refers to “Cote d’Ivoire” as if no one in the State Department knows the name of the country in English (Ivory Coast). If we are to start using the native languages for the names of different countries, we will have to refer to Egypt as Misr, Algeria as Jaza’ir, and Germany as Deutschland. It’s probably better to stick with English.

Or, to cite another example, when the Deputy National Security Adviser for Africa speaks of the president trying to find ways to speak directly to “the African people,” he is referring to the diverse peoples of the 54 countries of Africa as one people. It as if he were referring to people in Asia as “the Asian people” or the people in Latin America as “the Latin American people”. India, China and Brazil, to cite but a few examples, would not be pleased.

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